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S E C R E T GENEVA 000615
SIPDIS
DEPT FOR T, VCI AND EUR/PRA
DOE FOR NNSA/NA-24
CIA FOR WINPAC
JCS FOR J5/DDGSA
SECDEF FOR OSD(P)/STRATCAP
NAVY FOR CNO-N5JA AND DIRSSP
AIRFORCE FOR HQ USAF/ASX AND ASXP
DTRA FOR OP-OS OP-OSA AND DIRECTOR
NSC FOR LOOK
DIA FOR LEA
E.O. 12958: DECL: 07/25/2019
TAGS: KACTMARRPARMPRELRSUSSTART
SUBJECT: START FOLLOW-ON NEGOTIATIONS, GENEVA
(SFO-GVA-III): (U) START FOLLOW-ON NEGOTIATIONS, JULY 24,
2009, LAWYERS' MEETING ON FINAL PROVISIONS AND PREAMBLE
REF: GENEVA XXXXX (SFO-GVA-III-003)
Classified By: A/S Rose E. Gottemoeller, United States
START Negotiator. Reasons: 1.4(b) and (d).
¶1. (U) This is SFO-GVA-III-004.
¶2. (U) Meeting Date: July 24, 2009
Time: 11:00 A.M. - 12:30 P.M.
Place: U.S. Mission, Geneva
Participantts:
U.S. Russia
Mr. brown Ms. Kotkova
-------
SUMMARY
-------
¶3. (S) U.S. (Brown) and Russian (Kotkova) lawyers met to
discuss Russian-proposed texts for the final provisions and
preamble (REFTEL). Brown sought clarification of differences
between those texts and the Russian "vision" paper of June 1,
2009, as well as between those texts and the START Treaty.
For the final provisions, Kotkova explained that her intent
had been to simplify the texts and, therefore, she had
removed provisions that, while not legally objectionable,
were redundant or otherwise unnecessary. Brown noted that
some of the deleted texts had been used historically in arms
control agreements and, therefore, their deletion might raise
questions; in most cases Kotkova indicated that the full
START formulations could be used if necessary. For the
preamble, Kotkova was able to provide background on the
derivation of some of the provisions and promised to seek
more information for those she was unclear about.
----------------
FINAL PROVISIONS
----------------
¶4. (S) Brown noted that many of the paragraphs in the
Russian-proposed text of the Final Provisions used
abbreviated formulations compared to those in Articles XVI
through XIX of the START Treaty. Kotkova explained that she
had deliberately sought to simplify the texts but had not
intended to change their meaning. For instance, in paragraph
1 of the Russian proposal, the words, "in accordance with the
constitutional procedures of each Party" were deleted
because, as far as she knew, there was no other way that
ratification would be done. Brown noted that the reference
to constitutional procedures was contained in the Russian
"vision" paper of June 1 and more importantly was used in
Article XVII of START and in numerous other agreements,
including INF, CWC, and the Moscow Treaty. He asked whether
it would be a problem if the U.S. Side requested its
insertion: Kotkova responded that it would not.
¶5. (S) Turning to paragraph 2 of the Russian text, Brown
noted that there was no reference to supersession and no
provision permitting extension, even though both had been
contained in the Russian "vision" paper. Kotkova explained
that it was obvious that the treaty could be superseded if
the Parties so agreed and, therefore, such a provision was
redundant, citing Article 59 of the Vienna Convention on the
Law of Treaties. Brown noted that this was also a provision
used in the START and Moscow Treaties. On extension, she
said that the Parties could agree to an extension without
having such a reference in the START Follow-on Treaty. Brown
explained that the latter provision permitted an extension
without going through the same constitutional procedures as
would be required for its ratification. Kotkova responded
that there would be no difference for Russia: there was
still the need to obtain Duma approval, but she indicated
that the formulation could be changed back to the START
formulation.
¶6. (S) Brown noted that there was no reference to "integral
parts" of the Treaty, as had been done in paragraph 1 of
Article XVII of the START Treaty, and asked why this issue
had not been addressed. Kotkova commented that she had
included that idea in a separate article that had not yet
been presented to the U.S. Side. In paragraph 4 of the
Russian proposal, Brown observed that the START precedent, as
well as those in other arms control treaties where "changes
not deemed to be amendments" were permitted, was to
specifically identify the objective of these changes, i.e.,
"to ensure the viability and effectiveness of the Treaty,"
commenting that this language was well-known by those in the
U.S. Senate who followed this practice, and he cautioned
against deleting this language because it might lead them to
think that the practice was being changed. Kotkova said that
she was not aware of this aspect of the language and did not
see a reason to object to it if the U.S. side insisted, but
she had deleted it because she did not see a reason for its
retention.
¶7. (S) Brown commented that paragraph 5 of the
Russian=proposed text had replaced the words "withdraw from"
with "terminate" and asked for Kotkova's explanation of the
change, noting that the right to "withdraw from" the treaty
had been used in a number of arms control agreements in both
bilateral and multilateral contexts. Kotkova, citing Section
3 of the Vienna Convention, entitled "Termination and
Suspension of the Operation of Treaties," noted that the
effect of "withdrawal from" a bilateral treaty was
"termination," and, therefore, it made more sense to use that
term in that specific context, while "withdrawal from" made
more sense for multilateral treaties. Kotkova added that
this is the way she read Article 54 of the Vienna Convention
("Termination of or withdrawal from a treaty under its
provisions or by consent of the parties") and that using such
a clear formulation would make this more understandable to
those in the Duma who might ask for clarification as to the
legal effect of withdrawal. Brown again cautioned against
changing a formulation that had numerous precedents in this
same field, but noted that he would consult with colleagues
who specialized in Vienna Convention interpretations.
--------
PREAMBLE
--------
¶8. (S) Remarking that he had gone through the
Russian-proposed preamble and had compared it with the
Russian "vision" paper of June 1, 2009, the U.S. "Elements"
paper of May 19, 2009, and the START and Moscow Treaties'
Preambles, Brown asked whether Kotkova could shed any light
on the derivation of some of the formulations that he had not
found in any of those documents. Kotkova admitted that she
had not been directly involved in developing this part of the
text but that she might be able to provide some background.
- On the formulation "committed to the historical goal
of freeing humanity from the nuclear threat," Kotkova thought
that this related to the formulation in the Russian vision
paper on "the commitment of Russia and the U.S. to the goal
of the total elimination of nuclear weapons," as well as the
formulation in both the Russian vision paper and the U.S.
Elements paper on "demonstrable movement towards the ultimate
goal of the elimination of nuclear arms," although she was
not certain and would try to provide a more definitive answer.
- She was not aware of the derivation of either the
formulation "considering the stabilizing influence on the
global situation brought about by the radical and verifiable
reduction of nuclear arsenals at the turn of the twenty-first
century" or the formulation "seeking to maintain continuity
and provide new impetus to the process of reducing and
limiting nuclear arms while maintaining the safety and
security of their nuclear arsenals, and with a view to
multilateralization of this process in the future," but would
try to find out.
- On the formulation, "desiring to create a mechanism
for verifying compliance with the obligations under this
Treaty, based on the procedures that were perfected in the
START Treaty and supplemented by transparency and
confidence-building measures," she indicated that this had
come from the Russian military and she was not aware that
this had come from any other source.
- On the formulation that begins with "Considering it
necessary to bring the nuclear policy of the Russian
Federation and the United States of America into alignment
with our countries' post-Cold War relationship," she noted
that this was contained in both the Russian vision paper and
the U.S. Elements paper, but she agreed with Brown that a
better formulation for the preamble would be to replace the
words "our" and "us" with "their" and "them," to conform to
the practice of referring to the parties in the third person.
¶9. (S) Brown recalled the comments made by A/S Gottemoeller
on the Russian-proposed text for a preambular provision,
stating that Belarus, Kazakhstan and Ukraine had "completely
fulfilled" their START obligations and asked for
clarification. Kotkova explained that it was intentional
that the Russian-proposed text focused on the obligations in
the Lisbon Protocol rather than in the START Treaty itself,
and then Brown and Kotkova went through the articles of that
protocol, with Kotkova explaining that the three states had
fulfilled their obligations in each instance, including most
importantly acceding to the NPT as non-nuclear weapon states
Parties. Brown asked Kotkova how she would explain "full
compliance" with Article I of that protocol, which states
that the three states "shall assume the obligations" of the
former Soviet Union. She responded by distinguishing between
"assuming the obligations" in that context and "fulfilling
the obligations of START," which she acknowledged had not yet
been done. Kotkova said that such a positive statement was
chosen in part to defuse Ukrainian interest in participating
in START Follow-on Treaty negotiations. Brown expressed his
doubts that such a carefully crafted distinction would be
politically supportable but he understood what the Russian
Side was trying to do.
¶10. (S) Kotkova described how she had participated in a
recent meeting between Antonov and his Ukrainian counterpart
Nykonenko and that, during that meeting, she had argued that
her analysis of the Ukrainian instrument of accession to the
NPT demonstrated that Ukraine had already acknowledged that
there was no linkage between START and Ukraine's status as a
non-nuclear weapon state. She also had no idea what Ukraine
was trying to achieve by seeking a positive security
assurance from the P-5 in case Ukraine was threatened by a
third state.
¶11. (S) On the text of a second preambular provision
concerning Belarus, Kazakhstan and Ukraine ("Fully
appreciating the contribution of...to the cause of general
and complete nuclear disarmament and strengthening
international peace and security as non-nuclear weapon
states"), Kotkova explained that she thought these words had
come directly from Kazakhstani Foreign Minister Tazhin and
were also being proposed as an additional way to re-direct
the interest of those states in participating in START
Follow-on Treaty negotiations.
------------------
ADDITIONAL LAWYERS
------------------
¶12. (S) Brown asked whether Kotkova would be getting
reinforcements from Moscow in terms of additional lawyers,
noting that he had at least one lawyer identified from the
State Department to participate in the negotiations. She
responded that perhaps a lawyer from the President's Office
would be coming but she was not certain.
¶13. (U) Documents exchanged. None.
¶14. (U) Gottemoeller sends.
GRIFFITHS